Public Bill Committee

[Ian Paisley in the Chair]

Ian Paisley Jnr: Before we commence today, I have a few preliminary reminders: please switch off electronic devices or put them on silent; no food or drink is allowed, as we all know. If you can get any speeches to Hansard in an electronic format, that would be very helpful. My selection and grouping list for this sitting is available online and in the room. There will be a single debate on all clauses and amendments.

Clause 1 - Shared parental leave: entitlement in the event of death of mother

Question proposed, That the clause stand part of the Bill.

Ian Paisley Jnr: With this it will be convenient to discuss the following:
Clause stand part.
Clause 2 stand part.
Amendment 3, in clause 3, page 1, line 15, at end insert—
“(2A) Regulations
under subsection (2) are to be made by statutory
instrument.”
This amendment would require commencement regulations to be made by statutory instrument.
Amendment 4, in clause 3, page 1, line 16, leave out
“Shared Parental Leave and Pay”
and insert “Paternity Leave”.
This amendment is consequential on NC1.
Clause 3 stand part.

New clause 1—Paternity leave: special provision in cases of bereavement—
“(1) The
Employment Rights Act 1996 is amended as
follows.
(2) In section 80A
(entitlement to paternity leave: birth), after subsection (6)
insert—
‘(6A) In relation to cases where a child’s mother dies, this section has effect as if—
(a) subsection (1)(a) were omitted;
(b) after subsection (1) there were inserted—
“(1A) But in a case where both the child and the mother die, the regulations may provide that an employee who satisfies those conditions is entitled to leave under this section despite the fact that the leave cannot be taken for that purpose.”;
(c) subsection (4A) were omitted.’
(3) In section
80B (entitlement to paternity leave: adoption), after subsection (6B)
insert—
‘(6C) In relation to cases where a person with whom a child is placed or expected to be placed for adoption dies, this section has effect as if—
(a) subsection (1)(a) were omitted;
(b) after subsection (1) there were inserted—
“(1A) But in a case where that person dies and the child—
(a) dies, or
(b) is, having been placed for adoption, returned, the regulations may provide that an employee who satisfies those conditions is entitled to leave under this section despite the fact that the leave cannot be taken for that purpose.”;
(c) subsection (4A) were omitted.’
(4) In section
80D (special cases)—
(a)
after subsection (1)
insert—
‘(1A) Regulations under section 80A or 80B may—
(a) make provision specifying circumstances in which a bereaved employee may work for the employer during a period of leave under that section without bringing the particular period of leave, or the employee’s entitlement to leave under that section, to an end;
(b) make provision about redundancy of a bereaved employee after a period of leave under that section.’;
(b)
in subsection (2), after ‘subsection (1)’ insert
‘or (1A)(b)’;
(c)
after subsection (2)
insert—
‘(3) In subsection (1A), “bereaved employee” means an employee who—
(a) takes leave under section 80A in a case where the child’s mother dies, or
(b) takes leave under section 80B in a case where a person with whom the child is placed or expected to be placed for adoption dies.’”
This new clause would make special provision for paternity leave in cases where a mother (in the case of birth) or a person with whom a child is placed or expected to be placed for adoption (in the case of adoption) dies.
Amendment 5, in title, line 1, leave out from “about” to end of line 2 and insert
“paternity leave in cases where a mother, or a person with whom a child is placed or expected to be placed for adoption, dies”.
This amendment is consequential on NC1.

Chris Elmore: May I say what a pleasure it is to serve under your chairmanship, Mr Paisley? That is especially true as Members from Northern Ireland spoke on Second Reading to express their hope that if the Bill became law at some point, it could also be adopted in Northern Ireland. I genuinely hope that can be the case.
Upon learning of my success in the ballot, my ambition was to champion a legislative measure that could bring about lasting change and meaningful improvements in the lives of individuals and families to make their lives a little easier. I extend my gratitude to organisations such as Gingerbread, the Fawcett Society and the Childhood Bereavement Network for their invaluable support and guidance through this process.
I also place on record my thanks to and support for the hon. Member for Broxtowe, who was instrumental in leading the work on this vital issue when he introduced his ten-minute rule Bill. The hon. Gentleman has campaigned tirelessly on behalf of his constituent, Aaron, who, I am pleased to say—although I know we are not meant make reference to this—is in the Public Gallery this morning. When Aaron tragically lost his wife Bernadette shortly after the birth of their son, Tim, he did not have access to a statutory leave right because he had moved  employer in the months before Tim’s birth. The current rules put Aaron, and other parents in this tragic position, without access to leave to care for their child, safe in the knowledge that they have a job to come back to when they are ready and able to do so.
I also put on record my thanks to Simon Thorpe, who had to endure the heartache of losing his partner not long after the birth of their child. Simon has made it clear that as an employer now, he would not have been able to offer any more than five days’ compassionate leave if a member of his team found themselves in the same circumstances. Surviving partners and spouses should not be left at the mercy of whether they have an understanding employer. I hope the Bill will remedy that.
The Bill will put on the statute book a right to leave on the first day of the bereaved partner’s employment, providing them with the support and protection they need. It will introduce this entitlement and provide support and security to employed parents in the tragic circumstance of losing their partner around the same time as becoming a new parent, if they do not meet the continuity of service requirement to qualify for a statutory parental leave entitlement—in other words, if they have not been in their job for the required length of time to qualify.
The loss of a partner in a life-altering ordeal and navigating that profound grief alongside the demands of caring for a new child must undoubtedly pose an immense challenge. My heartfelt condolences go to those who find themselves in this terrible position. As the father of a three-year-old, I genuinely cannot think of anything worse than losing my wife and the mother of my son while having to raise him alone, as well as managing with the idea of whether I can keep my job.
Thankfully, only a small number of individuals find themselves in this situation, with around 180 maternal deaths within 12 months of childbirth a year. However, the most recent data published by MBRRACE, which monitors maternal deaths, stillbirths and infant deaths, highlights how maternal death during pregnancy is currently at a 20-year high. While the numbers are still mercifully low, it is important that parents in this position need not rely on the good will of their employer to take time away from work to care for their child and, indeed, to grieve.
As Members will have seen, the amendments make extensive changes to the Bill as introduced. Rather than going through which clauses will stand part of the Bill, I will therefore focus on amendments and, in doing so, detail what the Bill as revised will contain, and which parts of it will stand part of the revised Bill.
Let me begin by setting out the detail in new clause 1 which, as the Committee will have seen, makes substantive changes to chapter 3 of the Employment Rights Act 1996, which deals with paternity leave. The new clause has several purposes, all of which are integral to the Bill.
First, the new clause establishes that paternity leave will be used as the vehicle to deliver the entitlement. Having discussed that matter with the Government, I have concluded that paternity leave is a more appropriate vehicle to deliver the entitlement, a key reason being that the central feature of a shared parental leave scheme is that the mother or adoptive parent is already entitled to maternity or adoption leave or pay, and curtails that entitlement in order to create an entitlement to shared parental leave. For a bereaved partner to qualify for  shared parental leave, then, the deceased parent must have had a recent history of employment. If the deceased parent did not have such a history—for example, in the case of a stay-at-home mum—there would be no shared parental leave entitlement for the surviving parent to access. By contrast, paternity leave entitlements are independent of whatever entitlement the other parent has, so the choice of this mechanism brings more parents, such as surviving partners of deceased stay-at-home mums, into the scope of the entitlement.
Secondly, the entitlement establishes that the surviving partner of a parent who has opted to take adoption leave is in the scope of the entitlement. That allows the surviving parents of adopted children and of children born through surrogacy arrangements to be included, meaning that we can offer the entitlement to a wider range of parents, who will also benefit from it at a very challenging time for them.
Thirdly, the removal of the requirement that the regulations stipulate a continuity-of-service requirement will enable surviving parents to take leave from their first day in a new job, in the tragic situation in which their partner has died and they need to care for their child. That is essential to deliver the intention behind the Bill and ensure that continuity of service is no bar to taking this kind of leave when it is needed.
Fourthly, the new clause removes the requirement that regulations must provide that a parent who has taken shared parental leave cannot then take paternity leave. This gives the Secretary of State the power to provide that a parent who took shared parental leave before the death of their partner can still take paternity leave.
Fifthly, the new clause allows provision to be made for situations in which the child also dies. It gives the regulation the flexibility in such cases to allow the employee to stay on paternity leave for a period, despite the fact that they would not be taking the leave for the required purpose of supporting the mother or caring for the child.
Finally, the new clause introduces two new powers, the first of which provides the ability to introduce, through regulations, enhanced redundancy protection to bereaved employees when they return from extended paternity leave. The second power enables regulations to be made to allow bereaved parents to have keep-in-touch days during their extended paternity leave. For the Committee’s understanding, KIT days enable employees to work for their employer for a limited number of days without their right to paternal leave and pay being affected.
As I have set out, new clause 1 forms the heart of the Bill, as it contains its most important provisions. On that basis, I propose that the Committee accepts it and adds it to the Bill. I also propose that amendment 4, which is consequential on new clause 1, is accepted.
Amendment 1 removes clause 1, as the changes made by new clause 1 will effectively replace its context. I tabled amendment 1 to indicate my intention to vote against clause 1. Amendment 1 has not been selected by the Chair, but we can achieve the same effect by voting against clause 1.
Amendment 5 amends the long title, because it needs changing to more accurately represent the amended scope of the Bill’s content as a result of the changes made by new clause 1. I propose that the Committee accepts the amendment.
I have tabled amendment 2 to indicate my intention to vote against clause 2. I am enjoying looking across at Members who seem confused by what I am saying about voting against and for different amendments. I speak as a long-serving Whip, so if I find it confusing, there is not much hope for other Members, but I do think I am following it, thanks to the Clerk’s advice. Amendment 2 has not been selected by the Chair, but we can achieve the same effect by voting against clause 2.
Currently, clause 2(1) contains a broad Henry VIII power that enables the amendment of any Act of Parliament previously passed. I am sure the Committee will agree that the removal of such a broad Henry VIII power is a good thing. Clause 2 also includes other unnecessary provisions, such as a power to make transitional and saving provisions, and a stipulation that the affirmative procedure will apply to the regulations. To clarify to the Committee, that stipulation is unnecessary because the powers of the Employment Rights Act 1996 that are being amended by the Bill are already subject to the affirmative procedure.
Clause 3 sets out the extent of the Bill, which is England, Wales and Scotland. It also gives the Secretary of State the power to commence the Bill in regulations. Those two provisions have not been amended. Amendment 3 adds a standard legal provision to clause 3, setting out that the commencement regulations must be made by statutory instrument. I propose that amendment 3 is accepted, and that clause 3, as amended, stand part of the Bill. I will wait for Members’ remarks and close as the process allows.

Darren Henry: It is a pleasure to serve under your chairmanship, Mr Paisley. I thank the hon. Member for Ogmore and will keep my remarks brief as I know we do not have much time.

Ian Paisley Jnr: We have until 11.25 am.

Darren Henry: As the hon. Member knows, I am delighted that the Bill has got to this stage. For years now, I have pushed to make this vital change in law, following a local surgery in Broxtowe with my constituent, Aaron.
I agree with the amendments put forward, and I am grateful for the work undertaken by the hon. Member to achieve this level of support. It is important that he is taking the Bill through the House to stop individuals finding themselves in this position in future. I am particularly glad to see that cases of adoption are included. However, I am disappointed that pay is not included. I have previously placed on record my thoughts on the matter so I will not do so at length today, but I hope that pay will be added to the legislation in future to benefit all those who find themselves in a situation such as the one Aaron did.

Tracey Crouch: I congratulate both colleagues—the hon. Member for Ogmore and my hon. Friend the Member for Broxtowe—on bringing forward this vital piece of legislation. It is interesting that there is a public perception about what we do in this place, and this Bill is exactly what people do not see. It has come about from a surgery appointment  that showed a clear gap in shared parental leave. I congratulate both Members on the important work that they have done on this issue. I hope that those of us who are introducing the Bill never have to go through those tragic circumstances, but if we do, we should be comfortable and confident that we and our constituents will benefit from it.

Kevin Hollinrake: It is a pleasure to serve with you in the Chair, Mr Paisley. The Bill will provide bereaved parents with the support and protection that they need during one of the most devastating periods of their lives. Although we estimate that the number of people affected by these circumstances is thankfully low, the emotional strain and physical toll of caring for a new child while grieving the loss of a partner is simply unimaginable. I am pleased that the Government are able to support this important piece of legislation.
On Second Reading, the ambition of the Bill gained cross-party support in the House, and I am pleased to hear a similar sentiment being expressed today. Since Second Reading, we have discussed our plans for the Bill with stakeholders and we look forward to continuing to work with them. I also thank my right hon. Friend—sorry, my hon. Friend the Member for Broxtowe; it is only a matter of time. His tenacious campaigning efforts were a key factor in getting the Bill to this stage.

Theo Clarke: I echo the Minister’s sentiments on the cross-party support for the Bill. I particularly commend my hon. Friend the Member for Broxtowe. I remember when he came to see me several months ago to tell me about the case of his constituent in relation to my birth trauma inquiry. I was pleased to support this Bill, and I spoke in his related debate in Westminster Hall on his ten-minute rule Bill. I am delighted that the Bill has been taken forward and that we are finally closing this legal loophole to support constituents like his.

Kevin Hollinrake: I congratulate my hon. Friend on her campaigning work on a slightly separate but related issue. She does a fantastic job and we are making great progress. This place is no stranger to repetition, but it shows that persistence pays, and my hon. Friend the Member for Broxtowe has done a fantastic job pressing for change over a number of years, so he deserves the accolades he has received today.
I am glad to be working with the hon. Member for Ogmore, who has been incredibly collaborative and constructive in his discussions. I am sure he will deliver the Bill in good time and I thank him for his hard work and approach.
It was necessary for the Government to move a motion in the House to issue an instruction to allow the Committee to consider amendments to the Bill that would otherwise be out of scope. The instruction was debated and approved in the House on 5 March. Let me briefly summarise the changes to the Bill’s scope that it permits. First, we felt it was necessary to broaden the Bill’s scope to enable us to consider paternity leave as well as shared parental leave as the appropriate vehicle to deliver the entitlement. Secondly, the Bill’s scope was  expanded to allow the Committee to consider the inclusion of bereaved fathers and partners who have their child through other routes, such as adoption or a surrogacy arrangement.
On the amendments tabled by the hon. Member for Ogmore, new clause 1 provides many of the key provisions of the revised Bill. It establishes the legal method—paternity leave—that will be used to deliver the entitlement, and it expands the group of parents who can be included in the entitlement. I am pleased that we have been able to extend the Bill’s scope to include the parents of children through domestic adoption and to give us the power to include in regulations those who are parents through surrogacy and international adoption. No parent with a newly born or adopted child should be in a position in which they do not have access to statutory leave to care for their child in the event of the death of their partner.
Crucially, the new clause requires regulations to be made that set out that a surviving parent can take this kind of leave even if they do not meet the continuity-of-service provisions, and that enable a surviving parent to take paternity leave even if they have previously taken a period of shared parental leave prior. The new clause also enables the regulations to make provision for the tragic situation in which the child also dies. The regulations can allow a surviving parent to remain on leave for a period after the child’s death because the Bill sets aside the requirement that in such circumstances parents must use their leave to care for the child or support the other parent.
New clause 1 also gives the Secretary of State the power to make regulations that enable a parent to take keeping-in-touch days while they are on paternity leave, and the power to make regulations to give enhanced redundancy protection to parents who take paternity leave in such tragic circumstances, after they return to work. The provisions in the new clause are essential to deliver the intent of the Bill, so I agree with them. As Members will have seen, the provisions of new clause 1 will replace those in clause 1, so it is necessary to leave out clause 1.
Amendment 5 changes the long title to accurately reflect the Bill’s amended contents. I agree that it is necessary to ensure that the long title accurately reflects the Bill’s contents.
Like the hon. Member for Ogmore, we intend to vote against clause 2, which contains provisions that we do not consider to be necessary, including a wide-ranging Henry VIII power, a power to make transitional and savings provisions, and a stipulation that an affirmative procedure will apply to regulations. To clarify for the Committee, such a stipulation is not necessary in relation to the substantive powers because the powers in the 1996 Act that the Bill amends are already subject to the affirmative procedure. As is standard practice, the power to make commencement regulations is not subject to a parliamentary process.
Amendments 3 and 4 are largely technical. Amendment 3 refers to the statutory instrument necessary to commence the Bill, while amendment 4 is consequential on new clause 1. I agree that the amendments are necessary.
Let me address the point that my hon. Friend the Member for Broxtowe made about pay. Again, he has been a doughty campaigner on this issue. I understand his concern, but we do not believe that it is right.  Currently, no statutory pay entitlements, including statutory maternity pay, are available on the first day of a job. This is because employers, apart from small businesses, are required to contribute towards the cost of statutory parental pay, as well as meeting the costs associated with their employee’s absence from work, and new employees have not yet had time to make reasonable contributions towards their employers’ businesses. But I am sure that will not stop my hon. Friend campaigning on the issue in future.

Alicia Kearns: We come to this place to be a voice for our constituents, and I thank the Government for supporting this Bill—including the amendments that may or may not be voted for or against.
On that point around pay, I gently make the point to the Government that I fully endorse the view of my hon. Friend the Member for Broxtowe that there should be pay associated with this to support those families. I cannot imagine the agony of losing your partner and being left—hopefully, at least—with your baby and then facing the injustice of finding out that you do not have the leave not only to live through and recover from your trauma, but to care for that baby. This is important. We come to this place to right wrongs, and, today, the two hon. Gentleman, who I call my friends—the hon. Member for Ogmore and my hon. Friend the Member for Broxtowe—have done that. I thank them both for righting those wrongs. This is why we come to this place.

Kevin Hollinrake: My hon. Friend makes some very strong and worthwhile points, and I thank her for those.
To conclude, I would like to thank the Committee members for their valuable contributions. This Bill is an important extension of support and protection for parents facing one of the most challenging situations of their lives. The Government take pride in endorsing this private Member’s Bill, aligning our efforts with an unwavering commitment to bolstering workers’ support and to cultivating a high-skilled, high-productivity, high-wage economy.
I thank all hon. Members, but I particularly thank my hon. Friend the Member for Broxtowe and the hon. Member for Ogmore for working with me to develop this Bill into a piece of legislation that will work effectively for parents and businesses alike. I look forward to working with them during the future stages of the Bill.

Chris Elmore: I start by thanking the Minister most sincerely. There is a process with private Members’ Bills —perhaps I am issuing state secrets from the Government and Opposition Whips Offices—where handout Bills are worked through to ensure that private Members’ Bills can be delivered. This was not one of those Bills. I say this sincerely: the Minister, and indeed his officials, have been incredibly constructive in working with me to ensure that we do not let the perfect get in the way of the good, as the right hon. Member for Staffordshire Moorlands—I call her my right hon. Friend—says a lot in her Procedure Committee work, although I do not think that she invented the phrase. This Bill is that; we have made a significant step in the right direction, and, throughout the course of employment rights legislation, these things often started as leave, and then moved to the next step, and so on and so forth. Indeed, I do not  think that shared parental leave was in legislation until the Cameron Administration, and I think that paternity leave was invented by the Blair Administration. These things move and change throughout history, regardless of party politics.
That brings me to my broader point. I pay tribute again to the hon. Member for Broxtowe, because he has been a huge advocate for his constituents, but he has also been very good in lobbying me—a skill in itself—to convince me to take on the Bill. However, as I said on Second Reading, I do not want this Bill to help many people, because the whole point of it is to support people in their darkest hour, and nobody—Conservative, Labour, Scottish National party or Plaid Cymru—would want anybody to face this horror: the joy of being a parent and the unimaginable loss of losing a partner. Being a parent should be nothing but joy—and exhaustion, particularly when they are first born. It should not be about just blind grief. I am trying to understand how that feels, but I cannot imagine it, and I hope that I never have to face it. The numbers are small—and thank God for that—and I hope that they always remain small.

I would like to place on the record, although I mentioned them briefly, the Minister’s officials. I have had an insight into the work of the civil service over the past few weeks, and all I can say is that I am hugely impressed by it. The work that they have done has been wonderful. I also thank my staff, particularly my researcher, Alex Williams, who has spent many an hour working through this Bill, including with civil servants—I thank him for that. It is always nice to get one’s staff in the Hansard records, as it is not always something that we manage to do.
I thank all Members for their contributions. It is right to say that this House works best when it works cross party. These are the things that are not seen. This is genuinely a Government and Opposition Bill, and that is how these Bills should be; they should be about cross-party working as often as we can.
To move to a technical point, I reiterate the importance of this piece of legislation, and I hope that as we move to our decisions, under your stewardship, Mr Paisley, we will get the noes and ayes in the correct place—we will see how this works out. I hope that the Bill can proceed successfully to the next stage, to Report and Third Reading. It is my intention to vote against clause 1; I understand the procedural reasons for that. Good luck, Mr Paisley.

Ian Paisley Jnr: Thank you, Mr Elmore. I am sure that colleagues were listening very closely to Mr Elmore as he made the argument about where no means aye—reaffirmed by the Minister. Therefore, when the Question is put, colleagues will hopefully respond in the way that both Mr Elmore and the Minister have argued and reasoned for today.

Question put and negatived.

Clause 1 accordingly disagreed to.

Ian Paisley Jnr: We now come to clause 2, where, once again, no means aye.

Clause 2 disagreed to.

Ian Paisley Jnr: Back to normality.

Clause 3 - Extent, commencement and citation

Amendments made: 3, in clause 3, page 1, line 15, at end insert—
“(2A) Regulations
under subsection (2) are to be made by statutory
instrument.”
This amendment would require commencement regulations to be made by statutory instrument.
Amendment 4, in clause 3, page 1, line 16, leave out
“Shared Parental Leave and Pay”

and insert “Paternity Leave”.—(Chris Elmore.)
This amendment is consequential on NC1.

Clause 3, as amended, ordered to stand part of the Bill.

New Clause 1 - Paternity leave: special provision in cases of bereavement

“(1) The
Employment Rights Act 1996 is amended as
follows.
(2) In section 80A
(entitlement to paternity leave: birth), after subsection (6)
insert—
‘(6A) In relation to cases where a child’s mother dies, this section has effect as if—
(a) subsection (1)(a) were omitted;
(b) after subsection (1) there were inserted—
“(1A) But in a case where both the child and the mother die, the regulations may provide that an employee who satisfies those conditions is entitled to leave under this section despite the fact that the leave cannot be taken for that purpose.”;
(c) subsection (4A) were omitted.’
(3) In section
80B (entitlement to paternity leave: adoption), after subsection (6B)
insert—
‘(6C) In relation to cases where a person with whom a child is placed or expected to be placed for adoption dies, this section has effect as if—
(a) subsection (1)(a) were omitted;
(b) after subsection (1) there were inserted—
“(1A) But in a case where that person dies and the child—
(a) dies, or
(b) is, having been placed for adoption, returned, the regulations may provide that an employee who satisfies those conditions is entitled to leave under this section despite the fact that the leave cannot be taken for that purpose.”;
(c) subsection (4A) were omitted.’
(4) In section
80D (special cases)—
(a)
after subsection (1)
insert—
‘(1A) Regulations under section 80A or 80B may—
(a) make provision specifying circumstances in which a bereaved employee may work for the employer during a period of leave under that section without bringing the particular period of leave, or the employee’s entitlement to leave under that section, to an end;
(b) make provision about redundancy of a bereaved employee after a period of leave under that section.’;
(b)
in subsection (2), after ‘subsection (1)’ insert
‘or (1A)(b)’;
(c)
after subsection (2)
insert—
‘(3) In subsection (1A), “bereaved employee” means an employee who—
(a) takes leave under section 80A in a case where the child’s mother dies, or

(b) takes leave under section 80B in a case where a person with whom the child is placed or expected to be placed for adoption dies.’” —(Chris Elmore.)
This new clause would make special provision for paternity leave in cases where a mother (in the case of birth) or a person with whom a child is placed or expected to be placed for adoption (in the case of adoption) dies.

Brought up, read the First and Second time, and added to the Bill.

Title

Amendment made: 5, in title, line 1, leave out from “about” to end of line 2 and insert
“paternity leave in cases where a mother, or a person with whom a child is placed or expected to be placed for adoption, dies”.—(Chris Elmore.)
This amendment is consequential on NC1.

Bill, as amended, to be reported.

Ian Paisley Jnr: During the debate, Mr Elmore said that these are the things that are sometimes unseen. Well, today, these things have been seen and hopefully heard. This is a very important moment, because we are sending a private Member’s Bill to the next stage of becoming legislation. Congratulations to all Members—to those who have moved and to those who have spoken—to the Minister and to the officials as recorded.

Committee rose.